Expert Witness Testimony: Potential Changes to Uphold Gatekeeping Authority

A proposed amendment to Rule 702 of the Federal Rules of Evidence is being advanced by a federal judicial committee, clearing the way for it to go to the Judicial Conference of the United States and then to the U.S. Supreme Court. According to Reuters, the amendment states that expert witness testimony can only be admitted if a judge determines that the testimony is “more likely than not” based on sufficient facts and reliable methods.

U.S. District Judge Patrick Schiltz of Minnesota claims many federal judges had wrongly interpreted the existing rule to mean evidence could be admitted if a jury could find it reliable, rather than the judge. The current federal standard is known as the “Daubert” standard after a 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The proposed amendments clarify Rule 702’s admissibility standard and to emphasize a judge’s gatekeeping authority to allow or disallow expert testimony under Daubert.

As per The National Law Review, the key change would be spelling out the “preponderance of the evidence” standard—this is what has been applied inconsistently by judges in the past. A period of public comment on the amendment has recently closed, with “almost all” opposition coming from the plaintiffs’ bar, fearing more stringent standards would favor defendants. Conversely, the defense bar is in favor of the amendment, interpreting the current standard as too lenient, allowing unreliable expert testimony to be admitted.

Stay tuned to find out if these amendments are enacted. If approved by Congress, the amendment will take effect in December of 2023.

Roux has a team of environment, toxic tort, and commercial damages experts who are capable and experienced at the expert witness role in litigation. While the potential for these new standards do not affect the thorough approach and robustness in opinions that Roux’s experts hold as a standard, it could alter the dynamics of litigation for experts with lower standards.

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